State v. Bradley, 68320-4.

CourtUnited States State Supreme Court of Washington
Citation10 P.3d 358,141 Wash.2d 731
Decision Date16 May 2000
Docket NumberNo. 68320-4.,68320-4.
PartiesSTATE of Washington, Respondent, v. Alonzo BRADLEY, Appellant.

10 P.3d 358
141 Wash.2d 731

STATE of Washington, Respondent,
Alonzo BRADLEY, Appellant

No. 68320-4.

Supreme Court of Washington.

Argued May 16, 2000.

September 28, 2000.

Nielsen, Broman & Associates, David Bruce Koch, Seattle, for Appellant.

Norm Maleng, Prosecutor, Brian M. McDonald, James Whisman, Deputy Prosecutors, for Respondent.


We determine in this case the proper test for use of force by a person in self-defense to the actions of a correctional officer. Because we believe the circumstances of individuals using force in self-defense against correctional officers are analogous to the situation of persons resisting arrest, we hold a person may claim self-defense and use force to resist only when that person is in actual, imminent danger of serious injury. We affirm Alonzo Bradley's conviction for custodial assault pursuant to RCW 9A.36.100(1)(b).


When a person claims to be using force in self-defense to the actions of a correctional officer, must the person show he or she was in actual, imminent danger of serious injury, or is it sufficient to show only that he or she

10 P.3d 359
reasonably believed harm was imminent to establish self-defense


On May 15, 1997, Alonzo Bradley was detained at the King County Jail for probation violations on felony drug charges, assault in the second degree, investigation of assault, failing to appear on a resisting arrest charge, and telephone harassment. His criminal history included convictions for possession and possession with intent to deliver controlled substances, and assault in the second degree with a deadly weapon. At approximately 10:30 p.m. that evening at shift change for the jail, Bradley complained to Correctional Officer Glenn Redman of stomach pains and requested to see a nurse.1 Redman let Bradley out of his cell, and Bradley went to sit on nearby stairs. Bradley did not appear to Redman to be in immediate need of medical assistance, so he asked Bradley to return to his cell. He told Bradley he would summon a nurse at the end of the shift change period. Bradley refused repeated requests to return to his cell, even after at least two other correctional officers arrived to urge him to do so. Bradley testified he was physically unable to stand and walk back to his cell. 3 Report of Proceedings at 43 ("I said I can't. My legs—at that time I lost all motor skills in my legs.").

Finally, the supervisor, Sergeant Kim Snodgrass, arrived. As supervisor, Sgt. Snodgrass is the only correctional officer authorized to carry pepper spray. He testified pepper spray, a benign form of mace, causes extreme discomfort, but not permanent injury. He testified: "You wouldn't use pepper spray unless everything else fails. It is part of the ... continuum of force up the ladder from your presence [presence being the first step in the force continuum]. So, basically, yes, if talking with the inmate doesn't work for you, can't control the inmate or get them restrained, the next force would probably be pepper/mace." 2 Report of Proceedings at 128.

Sergeant Snodgrass assumed control of the scene and asked Bradley three times to return to his cell. Bradley continued to refuse. He also asked Bradley to stand up so Snodgrass could handcuff him. Bradley refused to stand. Snodgrass again threatened him with use of pepper spray, telling him what would happen if it got into his eyes. Bradley still refused to stand to be handcuffed or to go back to his cell.

Snodgrass then sprayed Bradley directly in the face with the pepper spray. Bradley sat up but did not otherwise react to the foaming spray. Allegedly in order to make the pepper spray work faster, Snodgrass testified he used his thumb to rub the spray into Bradley's eye. Snodgrass indicated Bradley then took a swing at him and bit his wrist, whereupon the other officers joined the fray, wrestled Bradley to the ground, and cuffed his hands behind his back, terminating his resistance.

Bradley told a very different version of what occurred. He stated to the jury he had been handcuffed before Snodgrass sprayed him with the pepper spray. He said the officers then jumped on him and were crushing him so he could not breathe. He claims a hand covered his mouth and nose, further preventing his breathing and, in an attempt to get air, he bit someone on the wrist.

As a result of this incident, the King County Prosecuting Attorney charged Bradley with two counts of custodial assault in accordance with RCW 9A.36.100(1)(c)(i).2 One count was for assault on Redman and the other count was for assault on Snodgrass. Bradley argued self-defense. The jury by

10 P.3d 360
general verdict found Bradley guilty of an assault on Snodgrass and not guilty of an assault on Redman

Bradley appealed his conviction on the ground the trial court gave the jury an incorrect self-defense instruction. He also claimed ineffective assistance of counsel and argued the State failed to disprove self-defense beyond a reasonable doubt. The Court of Appeals affirmed the conviction. State v. Bradley, 96 Wash.App. 678, 681, 980 P.2d 235 (1999). That court held the invited error doctrine barred Bradley from challenging a jury instruction he himself proposed; there was no ineffective assistance of counsel because Bradley's trial counsel had not proposed an incorrect jury instruction; and sufficient evidence supported the jury's conclusion the correctional officers used lawful force.3 The Court of Appeals specifically determined the trial court properly employed the "actual danger" standard for self-defense because "[t]he dangers to law enforcement officers and the needs for security are heightened in both the arrest setting and the custodial setting." Id. at 684, 980 P.2d 235. We granted Bradley's petition for review.


Initially, we note the State contends Bradley's argument on self-defense is barred by the doctrine of invited error. Because Bradley himself proposed the jury instruction he now challenges, the Court of Appeals correctly held he is barred from claiming error on appeal by the invited error doctrine. State v. Neher, 112 Wash.2d 347, 352-53, 771 P.2d 330 (1989). But in a criminal case, where the offering of an incorrect jury instruction may constitute ineffective assistance of counsel, we reach the merits of the challenge anyway in determining if counsel was ineffective. State v. Aho, 137 Wash.2d 736, 745-46, 975 P.2d 512 (1999).

To establish ineffective assistance of counsel, Bradley must demonstrate both that (1) his counsel's representation fell below an objective standard of reasonableness based on a consideration of all the circumstances, and (2) he was prejudiced. State v. Mierz, 127 Wash.2d 460, 471, 901 P.2d 286, 50 A.L.R.5th 921 (1995). At the core of this test here is the question of the standard for self-defense where a detainee assaults a correctional officer.

RCW 9A.16.020(3) provides the general test for self-defense in Washington:

The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:
(3)Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary;

It has long been the law in Washington that self-defense may be justified by apparent danger to the person claiming the benefit of the defense, as opposed to actual danger. In State v. Carter, 15 Wash. 121, 123-24, 45 P. 745 (1896), we approved a trial court self-defense instruction based on apparent danger:

We think there was no impropriety in the court's explaining to the jury the nature and legal effect of defendant's plea; and the latter portion of the instruction must be considered in the light of the entire charge, and when so considered it is plain that the jury were given to understand that it was the right of the defendant to act upon the "apparent," as distinguished from the "actual" danger. In fact, the court expressly charged that—
"A person need not be in actual imminent peril of his life or great bodily harm before he may defend himself. It is sufficient if in good faith he has a reasonable belief from the facts, as they appear to him at the time, that he is in imminent danger; if he honestly believes such to be the case then he had a right to act in self-defense."

10 P.3d 361
"The term `apparent danger' is to be understood as meaning not apparent danger in fact, but apparent danger as to defendant's comprehension; that is, did the defendant believe there was an apparent danger of being killed or of great bodily harm being inflicted upon his person at the time of the alleged stabbing."

Accord State v. LeFaber, 128 Wash.2d 896, 899-900, 913 P.2d 369 (1996). Thus, the general rule in Washington is that reasonable force in self-defense is justified if there is an appearance of imminent danger, not actual danger itself.

A different rule applies, however, if one seeks to justify use of force in self-defense against an arresting law enforcement officer. Numerous cases have held a person may use force to resist arrest only if the arrestee actually, as opposed to apparently, faces imminent danger of serious injury or death. The Court of Appeals in State v. Westlund, 13 Wash.App. 460, 467, 536 P.2d 20, 77 A.L.R.3d 270 (1975), first articulated the policy rationale for this rule:

[T]he arrestee's right to freedom from arrest without excessive force that falls short of causing serious injury or death can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom. However, in the vast majority of cases, as illustrated by the one at bar, resistance and intervention make matters worse, not better. They create violence where

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